United States v. Gaskins
2013 CAAF LEXIS 571
C.A.A.F.2013Background
- Appellant was convicted of carnal knowledge (Art. 120, UCMJ) and indecent acts with a child and indecent assault (Art. 134, UCMJ) based on events in Feb–Mar 2007 in Italy.
- During sentencing, DE A (a “Good Soldier Book”) was misplaced and not included in the record; the convening authority nonetheless approved a sentence.
- ACCA later set aside the sentence and ordered a sentence rehearing after reconsidering remedies for the missing exhibit.
- At rehearing (2011), the Government offered aggravation evidence and the defense offered only an unsworn statement; the military judge imposed a nine-year confinement, etc., later approved by the convening authority.
- The ACCA initially affirmed the sentence; on review, the court held charges II and the Additional Charge deficient for failing to plead the terminal element of Article 134, and set aside those findings; the court affirmed a lesser included offense of assault consummated by battery (Art. 128) and remanded for reassessment of sentence.
- The court noted no statute or rule compelled the particular restitution/remedy used and allowed a rehearing on sentence to cure the incomplete record.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether incomplete sentencing record limits permissible sentence | Gaskins argues record incomplete; argues sentence cap applies | Government argues rehearing allowed; verbatim transcript not required for remedy | Remedy of sentence rehearing appropriate; no abuse of discretion |
| Whether government failure to plead terminal element is prejudicial | Humphries asserts failure prejudices notice | Gaskins argues no waiver due to pre-Fosler trial context | Plain and obvious error; material prejudice; charges II/Additional Charge voided |
| Whether waiver/waiver-like analysis applies to Fosler defect | Humphries-like prejudice test governs | Waiver due to failure to object. post-Fosler context argues not waived | Defendant entitled to relief for failure to plead terminal element; prejudice shown |
| Whether there exists a valid lesser included offense | Indecent acts and assault overlap; LIO possible | LIO analysis supports only assault by battery | Affirmed LIO of assault by battery; indecent acts/assault findings reversed |
Key Cases Cited
- Fosler v. United States, 70 M.J. 225 (C.A.A.F. 2011) (terminal element of Article 134 must be pleaded and proven)
- Humphries v. United States, 71 M.J. 209 (C.A.A.F. 2012) (failure to plead terminal element prejudicial)
- Henry v. United States, 53 M.J. 108 (C.A.A.F. 2000) (substantial omissions render record incomplete)
- Tunstall v. United States, 72 M.J. 191 (C.A.A.F. 2013) (prejudice analysis in Article 134 cases)
- Goings v. United States, 72 M.J. 202 (C.A.A.F. 2013) (whether prejudice exists depends on notice and defense)
- Medina v. United States, 66 M.J. 21 (C.A.F. 2008) (terminal element is an alternative theory of liability)
- Cotton v. United States, 535 U.S. 625 (S. Ct. 2002) (noting notice and prejudice in some elements cases)
- Dominguez Benitez v. United States, 542 U.S. 74 (S. Ct. 2004) (elements-based approach to prejudice and notice)